Search and Seizure Law

The Fourth Amendment to the U.S. Constitution prevents illegal searches and seizures and is one of the most fundamental rights an American citizen has. Although this is a fundamental right shared by all Americans, there are plenty of exceptions to the rule, so it pays to understand how and when the police may search you and seize your property in accordance with the law.

The Fourth Amendment and Unreasonable Searches and Seizures

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

The keyword to notice is "unreasonable", because while Americans are generally protected from intrusive government searches and seizures, there are many "reasonable" searches and seizures that government officers can perform without a warrant that are still on the right side of the law. Whether or not a search or seizure is considered reasonable depends largely on whether you had a right to expect privacy in the first place.

Your Expectation to Privacy

The Fourth Amendment's protection against unreasonable searches and seizures has been held to apply only when a person has a "legitimate expectation to privacy". In other words, if you didn't expect the thing being searched to be private, then searching or seizing it is deemed reasonable and not against the law. The Supreme Court has established a two-part test to determine whether you had a legitimate expectation to privacy:

Did you actually expect some degree of privacy? Note that this is an "actual" test, meaning you need to demonstrate that you, in this particular instance, really did expect it to be private, not that you "might" or "often" expect privacy.

Is your expectation to privacy objectively reasonable? The second part of the test is meant to avoid scenarios where someone might say that they truly expected something to be private, but that society as a whole would disagree. The second part of the test makes privacy a broader social question regarding what is private and what is not.

Privacy and Reasonableness in America

Since the Fourth Amendment allows reasonable searches and seizures, and because reasonableness turns on expectations of privacy, most court cases turn on whether society (a jury in this case) agrees that someone had an objectively reasonable expectation to privacy. There are no hard and fast rules, but there are some common situations:

Homes: there are very few certainties when it comes to whether the expectation of privacy is objectively reasonable, but the one exception is probably a person's house. The notion that a man's home is his castle has a long history of support in the American legal system. There are very few instances where a person does not have a reasonable expectation to privacy in his or her home. As a result, the police must always have a warrant to search and seize items inside your house, absent exigent circumstances (typically the situation where evidence will be destroyed before a warrant is obtained).

Automobiles: cars have regularly been given a "lowered" expectation of privacy in U.S. law. Even if you think you have a right to privacy in your car, there's a good chance a court won't agree, so never bring anything in your car that you wouldn't mind the police seeing.

Bags, Purses and Briefcases: generally, courts have been willing to uphold a person's expectation to privacy in their personal belongings carried in a bag, purse or briefcase. This has even included a somewhat see-through bag carried by a passenger on a public bus.

There are many instances where some people might reasonably expect privacy, but case law has generally disagreed. Two prominent examples include your garbage and envelopes. Even though garbage is concealed in a bag and typically placed in a canister, courts have regularly allowed police to search through the garbage. Many people might also expect the contents of envelopes to be inherently private, but many courts have found that searches and seizures of the contents of envelopes were reasonable.

The Fourth Amendment Protects You from Government, not Private, Searches and Seizures

An important distinction to note is that the Fourth Amendment protects you from the government, not from private individuals. The most common example of this is when security personnel seek to search your belongings. While the police may not be able to just rummage inside of your purse, a mall cop can. Perhaps even more shocking to most, is that if the mall cop finds illegal drugs, he or she can turn you and the drugs over to the police and the evidence is admissible. Essentially, a security guard can do what a police officer cannot.

Illegally Obtained Evidence

Finally, it's worthwhile to learn what happens when a search or seizure is deemed unreasonable. What happens to the evidence that was seized?

Evidenced discovered by an illegal search and seizure is generally inadmissible in court under what is known as the "exclusionary rule". This means that even if the murder weapon was found and can conclusively establish that a suspect killed someone, if it was obtained through an illegal search and seizure, then it is generally not admissible.

There is also a related rule known as the "fruit of the poisonous tree", that says that evidence obtained through illegally obtained searches should also be excluded. This means that if the police illegally search a house and find a map of the locations of the suspect's drug stashes, the map, and the evidence at the locations, is also inadmissible because the search was illegal.

This may seem like it allows criminals to get away with their crimes based on police mistakes, but this often isn't the case. There are a number of exceptions to these rather harsh rules (for example, if the police can prove they would have found the drug stash locations anyways), and the rules recognize that if police were allowed to use evidence obtained illegally, then there would be little incentive to abide by the rules. The framers and subsequent courts decided that it would be worth letting some criminals get away with crimes rather than have a system where the police could search people and their belongings illegally and not face any consequences.

Next Steps

Contact a qualified criminal lawyer to make sureyour rights are protected. (e.g., Chicago, IL or 60611)